Updated: March 20, 2018
US CITIZENSHIP: HAVING IT, GETTING IT, GIVING IT UP
Depending on one’s perspective, US citizenship can be either (1) a precious and inalienable right, (2) a status that results in a handy passport making work and travel more convenient, or (3) a nuisance that exposes one to taxes and other obligations one would rather do without.
This article will provide an overview of how one gains US citizenship from birth, how one gets it if not born with it, and how one loses or gives it up.
Having It – US Citizenship from Birth
Birth in the US
Nearly everyone born in the United States is automatically a US citizen. The Fourteenth Amendment to the Constitution provides that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.’ Children of foreign diplomats do not acquire citizenship even if born in the US because they are not ‘subject to the jurisdiction’ of the United States.
Citizenship is conferred on a child born in the US regardless of the citizenship or US immigration status of the parents. In fact, even the parents’ wishes are irrelevant; parents cannot renounce US citizenship on behalf of their children.
Citizenship may be transmitted to a child born outside the United States if at least one of the parents is a US citizen. Whether transmission occurs depends upon a number of factors—the date of the child’s birth, whether the birth took place in or out of wedlock, and whether both or only one of the parents is a US citizen.
- Children Born in Wedlock
A child born outside the US is nevertheless a US citizen if his parents are both US citizens, married, and at the time of the child’s birth at least one of the parents previously resided in the US for any period of time.
If only one of his (married) parents is a US citizen at the time of the child’s birth, the factors determining the child’s citizenship will turn on his date of birth and satisfactory demonstration of one of the following:
- A child born on or after November 14, 1986 is a US citizen if his US citizen parent was physically present in the US, legally or illegally, for at least five years before the child’s birth, two of which must have been after the age of 14.
- A child born between December 24, 1952 and November 14, 1986 is a US citizen if his US citizen parent was physically present in the US, legally or illegally, for at least 10 years before the child’s birth, five of which must have been after the age of 14.
- A child born between January 13, 1941 and December 24, 1952 is a US citizen if his US citizen parent was physically present in the US, legally or illegally, for at least 10 years before the child’s birth, five of which must have been after the age of 16.
In contrast to the physical presence requirement for the US citizen parent, there is no longer a physical presence requirement for a US citizen child born abroad to retain his or her citizenship. The previous physical presence requirement for US children born abroad to retain citizenship was repealed effective October 10, 1978, and is inapplicable for any child born on or after October 10, 1952. Persons who lost their US citizenship through failure to meet the residence requirement imposed by previous versions of the law may have their citizenship restored upon taking an oath.
- Children Born Out of Wedlock
The rules for children born out of wedlock outside the US are more complex. Until recently a child’s claim to citizenship varied depending on whether it was the mother or the father who was the US citizen. However, on June 12, 2017 in the case Sessions v Morales-Santana, the Supreme Court struck down as unconstitutionally gender discriminatory the statutory provision that required less physical presence for an unwed mother to transmit citizenship than for an unwed father. Unless and until Congress acts to amend the statute the same physical presence requirements now apply for the transmission of citizenship to a child born outside wedlock as in wedlock.
A child born out of wedlock to a non-US citizen mother and a US citizen father acquires US citizenship at birth only if the father legitimates or formally acknowledges the child and meets other requirements. In addition to legitimation or acknowledgement, the US citizen father must also, in order to transmit citizenship to his child, meet US residence requirements in effect at the time, and must promise to provide financial support for the child until the child turns 18 years of age. A challenge to the constitutionality of the statute that requires for transmission of citizenship these affirmative actions on the part of an unwed father but not an unwed mother was upheld in 2011 by an evenly divided Supreme Court.
Getting It – Naturalization
Persons who were not born US citizens may acquire citizenship through the process of naturalization. The applicant must satisfy five primary requirements:
- Be age 18 or older;
- Have been lawfully admitted to the US for permanent residence;
- Fulfil the US residence requirements;
- Be of good moral character; and
- Demonstrate English literacy and basic knowledge of US civics.
These basic requirements and their exceptions are discussed in more detail below. Following that, we will look briefly at the requirement of the oath of allegiance and then turn to expedited procedures and relaxed requirements available for some relatives of US citizens.
- Age 18 Years or Older at the Time of Filing
There are two exceptions to this straightforward requirement. Persons under the age of 18 may apply for naturalization if they have served honourably in the US Armed Forces during a time of war or declared hostilities. For instance, a period of ‘declared hostilities’ in the form of the war on terrorism has existed from September 11, 2001 to the present, as declared by President George W. Bush on July 3, 2002. The second exception to the age 18 requirement applies to qualifying children of certain US citizens.
- Status as a Lawful Permanent Resident (LPR)
Applicants for naturalization must first have been lawfully admitted as permanent residents. Note that it is not enough to hold a green card as a permanent resident; that ‘green card’ status must have been lawfully acquired.
Once again, there are two major exceptions to the rule that a person must first become an LPR before applying for naturalization—for persons who have served honorably in the US Armed Forces, as set forth above, and for qualifying children of certain US citizens.
- Residence in the United States
The residence requirement has four subcategories that most applicants must meet: Continuous residence, physical presence, residence within the relevant US state or immigration service district, and residence between the time of filing of the application and admission to citizenship. According to the US Citizenship and Immigration Services (‘USCIS’), an agency of the Department of Homeland Security, Congress enacted the residence requirement ‘to afford the applicant an opportunity to learn the country’s language and the essential facts of its history and government, as well as to demonstrate his ability to conduct himself in the manner of a law-abiding citizen.’
- Continuous Residence
Naturalization applicants must generally show five years of continuous US residence after the grant of LPR status. Two exceptions to the five year requirement exist, allowing naturalization after only three years of residence for
- Applicants married to and living in marital union with US citizens; and
- Persons who obtained their LPR status under the Violence Against Women Act (VAWA) by reason of extreme cruelty from a US citizen spouse or parent.
In both the three and five year categories, the naturalization application itself may be filed up to three months before the end of the five- (or three-) year period, but the full five-/three-year requirement must be satisfied before naturalization will be granted.
‘Continuous residence’ is related to, but is not the same as, physical presence (discussed in the following paragraph). For instance, ‘continuous residence’ is not broken by absences of six months or less. An absence of between six months and a year, on the other hand, will break the continuous period of residence unless the applicant can show, by a preponderance of the evidence, that he did not in fact abandon his residence. An absence of one year or more will break the continuous residence period, unless the applicant comes within an exception for employees of certain US government agencies, US companies, or certain international groups, and the applicant has filed an application to preserve residence for naturalization purposes.
- Physical Presence
In order to qualify for naturalization most applicants must also show that they have been physically present in the US for at least one-half of the required continuous residence period. Therefore spouses of US citizens, living in marital union, and self-petitioners under VAWA, would need to demonstrate actual physical presence for 18 months in the required three-year period of continuous residence; most other applicants would need to show actual physical presence of 30 months within the required five-year continuous residence period
- Residence in State or Immigration Service District
The third subcategory of the residence requirement mandates that in the three months immediately prior to the filing of the naturalization application the applicant must have resided within the state or immigration service district in which the application is to be filed.
- Residence Between Application Filing and Grant of Citizenship
Finally, the applicant must have resided continuously within the United States from the date the application was filed until the time citizenship is granted.
- Good Moral Character
An applicant for naturalization must demonstrate good moral character during the statutory period of residence (either three or five years, as set out above). The applicant is not required to have lived a perfect life. Rather, the USCIS defines the requirement to mean ‘character which measures up to the standards of average citizens of the community in which the applicant resides, and thus does not necessarily require the highest degree of moral excellence.’ Conduct outside the statutory period may be considered if it appears relevant to a determination of the applicant’s present moral character.
5. Civics Requirements
Applicants must demonstrate an ability to read, write, and speak words in ordinary usage in the English language. The reading and writing of ‘simple words and phrases’ in English is required. Exemptions are available to persons unable to comply due to permanent disability; additionally, the literacy test may be given in the native language of an alien who is either more than 50 years old and has resided in the US for more than 20 years as an LPR, or who is over 55 years old and has 15 years of LPR residence.
Applicants must also pass an oral examination on the fundamentals of the history and of the principles and form of government of the United States. If an applicant is exempt from the English language requirement, this examination may be administered in the applicant’s native language. The examination will be waived as to aliens physically unable to comply with the requirement, and accommodation in the form of an abbreviated list of examination questions has been made for aliens over 65 years of age who have been permanent residents for more than 20 years.
An applicant for naturalization must also demonstrate that he or she is ‘attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.’
Oath of Allegiance
After satisfying all other requirements the applicant must take an oath or affirmation of allegiance to the United States.
In addition to the special rules for persons in the military, expedited procedures are available to naturalize
- Certain children of US citizens
- Spouses of some US citizens working abroad
- Some spouses of members of the US Armed Forces, and
- Some immediate relatives of US citizens who died on active duty in the US Armed Forces.
There are also highly specialized exceptions beyond the scope of this overview, such as those for persons determined to have made ‘an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities,’ and certain translators in Iraq and Afghanistan.
The Child Citizenship Act of 2000 (‘CCA 2000’) enables certain biological and adopted foreign-born children of US citizens who did not acquire US citizenship at birth to become US citizens either automatically when they enter the US as immigrants, or by expedited naturalization. To qualify for automatic citizenship upon entry to the US the child must
- Have at least one US citizen parent;
- Be under the age of 18;
- Live in the physical and legal custody of the US citizen parent; and
- Be admitted for permanent residence as an immigrant.
A US citizen’s biological child satisfying these requirements acquires citizenship automatically upon entry. An adopted child acquires citizenship on the date the adoption becomes full and final in the US.
To qualify for expedited naturalization under CCA 2000 the child must
- Have at least one US citizen parent;
- Be under the age of 18;
- Reside outside the US in the physical and legal custody of the US citizen parent; and
- Have either a US citizen parent or US citizen grandparent who has been physically present in the US for at least five years, at least two of which were after the age of 14. This physical presence does not need to have been accomplished before the birth of the child. A child may qualify for naturalization through a deceased grandparent if the child meets the other requirements and the grandparent had satisfied the physical presence requirement at the time of his or her death.
If these requirements are satisfied, an application for naturalization can be filed with the USCIS from outside the US, without regard to the usual requirements of LPR status or period of residence in the US. When the application is approved the child must then enter the US to take an oath of allegiance, which may be waived if the child is too young to understand it, and thus becomes a US citizen.
- Spouses of US Citizens Employed Abroad
Certain spouses of US citizens employed abroad can apply for naturalization without satisfying the normal residence requirements for naturalization. Expedited naturalization is possible where the alien is an LPR married to a US citizen who is
- Employed outside the United States by the US Government, a US research institution designated by regulation, or a public international organization in which the US participates; or
- Performing duties abroad as a minister, priest or missionary; or
- Employed outside the United States by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States. In all cases the US citizen spouse must be regularly stationed abroad in his or her employment. The alien spouse must have the intent to join or accompany the US citizen spouse abroad and to return immediately to the United States upon termination of the US citizen spouse’s employment abroad.
- Spouses of Members of the US Armed Forces
A person married to a member of the US Armed Forces who is authorized to accompany the service member abroad and resides there pursuant to official orders is allowed to count toward satisfaction of both the three-year continuous residence and the physical presence requirements the time that he or she spends living abroad with the service member.
- Immediate Family of US Citizens Who Died in Active Duty with the US Armed Forces.
Surviving spouses, as well as parents and children of US citizens who die during active duty with the US Armed Forces, are relieved of both the continuous residence and physical presence requirements for naturalization.
Losing It – Giving It Up
There are two ways a person may lose his or her US citizenship. The first is involuntary—rescission of citizenship, known as ‘denaturalization.’ This is applicable only to naturalized citizens and is outside the scope of this discussion.
The second way to lose citizenship is to voluntarily perform any of the following acts with the intention of relinquishing citizenship:
- Naturalize in a foreign state after attaining the age of 18;
- Take an oath or other formal declaration of allegiance to a foreign state after attaining the age of 18;
- Enter the armed forces of a foreign country if either
Accept employment or perform the duties of any office or post with a foreign government after attaining the age of 18, if
- the armed forces are engaged in hostilities against the US; or
- the person serves as a commissioned or non-commissioned officer;
Formally renounce US citizenship before a US diplomatic or consular officer outside the US;
Formally renounce US citizenship in writing within the US in time of war; or
Commit an act of treason for which one is convicted.
- one has or acquires the nationality of that foreign state; or
- a declaration of allegiance is required in accepting the position;
Performance of one of the acts listed above causes loss of US citizenship only if performed voluntarily and with the intention of relinquishing US citizenship—even committing an act of treason.
Relinquishment Through a Past Voluntary Act
Since 1990 the US Department of State has applied an administrative presumption that a US citizen intends to retain citizenship when he or she obtains naturalization in a foreign state; subscribes to a routine declaration of allegiance to a foreign state; or accepts a non-policy level employment with a foreign government. A ‘routine declaration of allegiance’ is generally one which does not contain a provision requiring the person to renounce former allegiances. This presumption has been incorporated into the standard US passport application form, the DS-82, which now requires persons who have committed a potentially expatriating act to provide an explanatory statement under oath or affirmation as to the conditions under which they performed the act.
If the US citizen did perform any of the potentially expatriating acts and in doing so had the intention of relinquishing citizenship, he or she may appear before a US consular officer to document this fact. The former citizen will fill out a form and sign a voluntary relinquishment statement.
If the Department of State approves the finding that the former US citizen had relinquished citizenship, the Department issues a Certificate of Loss of Nationality (‘CLN’) which is sent to the former US citizen, together with that person’s cancelled US passport. The CLN will state that citizenship was lost at the time the expatriating act was performed.
Renunciation Before a Diplomatic or Consular Officer
A US citizen also has the option of voluntarily relinquishing US citizenship by formally renouncing his or her citizenship status before a diplomatic or consular officer in a foreign country. A person wishing to renounce US citizenship must appear in person before such a US official and sign an Oath of Renunciation. Again, a CLN is issued and sent to the former US citizen, together with that person’s cancelled US passport.
US citizens cannot renounce citizenship while in the US (except in time of war), nor can parents renounce citizenship on behalf of their children. A US citizen under the age of 18 must convince a diplomatic or consular officer that he or she understands fully the nature and consequences of the Oath of Renunciation and is voluntarily seeking to renounce his or her US citizenship. If a US citizen child is under the age of 14, US common law requires that the child’s understanding be established by substantial evidence.
Renunciation of US citizenship is irrevocable and cannot be set aside without administrative or judicial appeal, except in the case of a former US citizen who officially renounced his or her citizenship prior to attaining the age of 18. Such a renunciant can have citizenship reinstated if he or she makes known that desire to the Department of State within six months of attaining the age of 18.
When a former US citizen has expatriated, that person will be subject to the immigration laws of the US the same as any other alien, including being subject to all of the grounds of ineligibility for visas and inadmissibility to the US.
Expatriates who Renounce Citizenship for Tax Purposes
In 1996 Congress enacted immigration legislation amending the grounds of ineligibility for visas and of inadmissibility to the US. Under that section of the law, known as ‘the Reed Amendment,’ any former US citizen who officially renounces US citizenship and who is determined by the Attorney General to have renounced for the purpose of avoiding taxation by the US is inadmissible to the United States and ineligible for a visa. This exclusion applies only to former US citizens who lost citizenship by officially renouncing citizenship on or after September 30, 1996.
Additional information potentially useful to the US citizen thinking of relinquishing citizenship can be found in our website article Giving Up US Citizenship: Is it Right for You?
US law provides a complicated scheme for acquiring US citizenship, transmitting it to one’s children (or not), and even relinquishing it. This short article cannot possibly cover all permutations of the law, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.